FEDERAL COURT OF AUSTRALIA

MZYSV v Minister for Immigration and Citizenship [2012] FCA 1353

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the Federal Magistrates Court of Australia on 14 August 2012 be set aside.

3.    There be substituted for those orders, orders that:

(i)    a writ of certiorari issue directed to the second respondent, removing into this Court the decision of the second respondent dated 11 November 2011 in case number 1106197, for the purpose of quashing that decision;

(ii)    the decision of the second respondent, dated 11 November 2011 in case number 1106197, be quashed;

(iii)    a writ of mandamus issue, directed to the second respondent, requiring that it hear and determine according to law, the application of the appellant for review of the decision of a delegate of the first respondent to refuse to grant the appellant a Protection (Class XA) visa; and

(iv)    that the second respondent be differently constituted when obeying the writ of mandamus issued under Order 3(iii).

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

INTRODUCTION

1    This is an appeal from a judgment of a Federal Magistrate (MZYSV v Minister for Immigration and Citizenship [2012] FMCA 871) in which the Federal Magistrate dismissed the appellant’s application for judicial review. The Federal Magistrate reviewed a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed a decision of a delegate of the first respondent (“the Minister”) not to grant the appellant a Protection (Class XA) visa (“Protection Visa”).

2    The task of the Federal Magistrates Court in dealing with the judicial review proceedings brought by the appellant was to determine whether the Tribunal’s decision was affected by jurisdictional error: s 476 of the Migration Act 1958 (Cth) (“the Migration Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3     The task of this Court in relation to the appeal brought by the appellant is to determine whether the judgment of the Federal Magistrate is affected by appealable error: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11] (Branson, Finn and Finkelstein JJ).

4    For the reasons that follow, I have determined to allow the appeal.

5    There were two central questions before the Tribunal raised on the material it had before it. Both concerned whether the appellant held a well-founded fear of persecution attributable to a Convention reason, being political opinion. The Convention to which I refer is the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (“the Convention”).

6    The first question raised was whether a well founded fear was substantiated on the basis of the appellant’s political activities whilst in Sri Lanka and prior to his arrival in Australia. The Tribunal determined that it was not. It did so because it did not accept that the appellant had been an active supporter of the UNP (a political party in opposition to the current government in Sri Lanka) and that his profile as an ordinary inactive member of the UNP would not warrant adverse attention from either the Sri Lankan government or opponents of the UNP, should the appellant be returned to Sri Lanka.

7    The second question was whether a well-founded fear of persecution arose because of the political opinion that would be imputed to the appellant by reason of his father’s political opinion (or imputed opinion).

8    Presidential elections were held in Sri Lanka in January 2010. As the country information referred to by the Tribunal (at [66]) identified, the incumbent President Mahinda Rajapakse defeated retired army General Fonseka. On 8 February 2010, General Fonseka was arrested for “military offences”. He was sentenced to 30 months imprisonment in August 2010. The country information to which the Tribunal referred indicated that many of General Fonseka’s staff and supporters have been harassed and arrested, including retired army officers associated with General Fonseka.

9    The appellant’s father is a retired army officer who the appellant claimed was a close friend of General Fonseka. The appellant’s father returned to Australia shortly after the elections. The appellant contended that as the eldest son of his father, those opposed to General Fonseka would come after him in circumstances where they could not get hold of his father (see at [51] of the Tribunal’s reasons).

10    In dealing with that fear, the Tribunal did not accept that the appellant’s father had been directly involved in politics. The Tribunal thought it “implausible” that the appellant’s father was asked to return to Sri Lanka from Australia to assist in General Fonseka’s campaign just two weeks prior to the date of the election. The Tribunal rejected the appellant’s evidence that his father had been an active member in General Fonseka’s campaign after being asked to return from Australia. The Tribunal rejected the appellant’s evidence that his father had been hounded following the elections and prior to his escape back to Australia. The Tribunal at [92] of its reasons stated that it did not accept that the appellant’s father “was a supporter of General Fonseka” and did not accept that the appellant “would be harmed by government supporters and the armed forces, now or in the reasonably foreseeable future, if he returns to Sri Lanka”. The Tribunal therefore rejected the argument that the appellant faced a real chance of persecution because of his father’s alleged political opinion or profile.

11    In both the Federal Magistrates Court and on this appeal, the only challenge raised by the appellant to the Tribunal’s decision related to its findings on the second basis on which the appellant’s fear was put, namely his fear based on his father’s association with General Fonseka. Given that the grounds of appeal are the same in the appellant’s Notice of Appeal as the grounds of challenge before the Federal Magistrates Court, I proceed on the basis that what the appellant here contends is that the Federal Magistrate erred in failing to identify jurisdictional error in the Tribunal’s decision in relation to each of the grounds identified to the Federal Magistrate by the appellant’s application to that Court. Those grounds were as follows:

A.    The decision of the Court/Tribunal was made without jurisdiction or is affected by an error of jurisdiction:

                PARTICULARS

(a)    The tribunal has erred when it says that it does not accept that the applicant’s father was a supporter of General Fonseka, as there is no evidence to suggest that conclusion.

(b)    The country information quoted and used in its decision would support that given the applicant’s father was a former associate, the applicant would be of adverse interest to the government authorities.

(c)    There is no evidence for the tribunal to come to the conclusion that it does not accept that the applicant’s father was asked to return to Sri Lanka to assist in General Fonseka’s bid to become President or that he was active in the General’s campaign after leaving Australia.

(d)    There is also no evidence to suggest that the applicant’s father did not actively campaign in the Vavuniya district as well as the Ambalangoda electorate and Colombo and the tribunal has erred by giving no weight to the letter from Mrs. Fonseka.

(e)    The tribunal is giving the literal meaning to the phrase “working day and night” when it is colloquially used in Sri Lanka to imply a person is working very hard.

12    The first ground ((a) above) was that the Tribunal erred by not accepting that the appellant’s father was a supporter of General Fonseka “as there is no evidence to suggest that conclusion”. The learned Federal Magistrate dealt with that ground at [14]-[15] of his reasons for decision as follows:

It appears to be a complaint that the tribunal did not accept the applicant’s evidence when there was no evidence of the negative proposition: That is, the proposition that his father was not involved with General Fonseka. The tribunal canvassed the evidence relating to his and his father’s involvement in some detail (see paragraphs 78 and 93). Given that it was ultimately a finding by the tribunal that it did not accept the positive case of the applicant, it does not appear to me to be a situation where the tribunal needed specific evidence to support the conclusions that they reached.

It is quite different to a case where a tribunal reaches a finding of satisfaction of a particular fact when there is no evidence to support a positive finding. In the case of a negative finding, there does not have to be evidence to support a negative conclusion and for this reason, I do not accept that Ground (a) can succeed.

13    With respect to the learned Federal Magistrate, I do not find it easy to understand the meaning intended by this passage. Counsel for the Minister confessed to a similar difficulty. As best as I can understand it, the Federal Magistrate seems to be saying that a conclusion of non-satisfaction as to a fact in issue is a “negative finding” and that such a finding is not capable of being the subject of a no evidence challenge. With respect, the reasoning here is somewhat confused, but the real vice is that the Federal Magistrate has adopted an overly narrow and literalist interpretation of the appellant’s first ground of challenge. That ground was not really saying there was no evidence to sustain the Tribunal’s failure to accept that the appellant’s father was a supporter of General Fonseka. What was being contended was that the Tribunal’s refusal to accept that the appellant’s father was a supporter of General Fonseka was contrary to the evidence. That the phrase “no evidence” in relation to a conclusion made by the Tribunal was being used to indicate that the conclusion was against or contrary to the evidence, is also apparent when regard is had to the third and fourth grounds of challenge.

14    The same literalist approach as was taken to the first challenge seems to have been taken by the Federal Magistrate at least in relation to the third challenge, which was rejected by the Federal Magistrate at [18] and [19] of the Federal Magistrate’s reasons on the basis that the challenged finding “was not a positive finding of fact that required a specific evidentiary foundation” (at [19]).

15    By taking a narrow approach to these grounds of challenge, it seems to me that the Federal Magistrate erred because he failed to deal with the grounds that the appellant was actually pursuing. However, that failure on the part of the Federal Magistrate could only lead to relief for the appellant if it resulted in the Federal Magistrate’s failure to identify a jurisdictional error in the decision of the Tribunal.

16    In my view, the Tribunal’s decision is compromised by a jurisdictional error because the Tribunal failed to deal with one of the claimed bases for the appellant’s fear of persecution. Such a failure is a denial of procedural fairness and thus a jurisdictional error: Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319 at [90] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).

17    It is sufficiently apparent from [22] of the Tribunal’s reasons that the appellant claimed that his father and General Fonseka were good friends. That claim was first made in the appellant’s application for a protection visa and was supported by photographs and other material. The appellant also claimed that his father had campaigned for General Fonseka in the Presidential election. Each of those matters were relied upon for the appellant’s expressed fear that the perceived sins of the father would be visited upon him, the eldest son.

18    The issue for the Tribunal was whether the appellant’s father had a profile, by reason of his association with General Fonseka, sufficient to warrant adverse attention being visited on his son, should his son be returned to Sri Lanka. On a fair reading of the material before the Tribunal and in the context of its inquisitorial role, the appellant’s claim was that the father had such a profile for two reasons. Firstly his friendship with the General and secondly his active involvement in the General’s campaign.

19    The Tribunal clearly dealt with and rejected the claimed active involvement of the father in the General’s campaign. That was done in part at [86], and then at [87] to [90] and [92] of the Tribunal’s reasons. Though the Tribunal’s finding of implausibility at [86] (which I will shortly quote) is perhaps surprising, there is no jurisdictional error in the fact finding exercise in which the Tribunal was there engaged.

20    However, the other basis for the father’s profile, that of his friendship with General Fonseka, is not a matter that the Tribunal’s reasons suggest was appreciated by the Tribunal as an integer of the appellant’s claim. At [86] the Tribunal stated:

The Tribunal accepts that the applicant’s father may be a contemporary of General Fonseka. The Tribunal has taken into consideration the photographic evidence submitted by the applicant to the Department and which he presented to the Tribunal at the hearing and accepts that his father was in secondary school with General Fonseka and served with him in the army. However, the Tribunal does not accept that the applicant’s father was requested to return from Australia to support General Fonseka’s presidential campaign. The Tribunal finds it implausible that the applicant’s father would have been asked to return to Sri Lanka to assist in General Fonseka’s campaign just two weeks before the date of the election. The Tribunal does not accept that if the applicant’s father was a close friend of General Fonseka’s, as the applicant claimed and the General required the support of the applicant’s father, he would have waited until the dying stage of the campaign to request he return from Australia, instead of an earlier point of time.

21    This paragraph is the only paragraph in the section of the Tribunal’s reasons setting out its findings, where the personal relationship between the appellant’s father and General Fonseka is dealt with. The first half of [86] suggests that the Tribunal accepted that the father and the General had a personal relationship. The second half of the paragraph then moves to deal with the issue of whether or not the appellant’s father participated in the General’s campaign. I do not accept the Minister’s contention that the last sentence includes a finding that the father and General Fonseka were not close friends. To the contrary, the sentence presumes such a friendship as a basis for its rejection of the claim that the father was active in the General’s presidential campaign.

22    Having either accepted or at least not rejected the appellant’s claim that the father and the General were close friends, it was incumbent upon the Tribunal to consider whether that friendship was a basis for a well-founded fear of persecution. Such a finding could have supported such a fear and done so irrespective of the Tribunal’s finding that the father had not been active in the General’s campaign. It needed to be dealt with but in my view was not. The Minister was unable to identify that integer being expressly dealt with. Read in context the first sentence of [92] is dealing with the father not being a “supporter” of the General in the sense of not being an activist in the General’s campaign. The references to “profile” at the end of [92] and to “membership of his family” in [94] are too general to support an inference that the friendship between the appellant’s father and General Fonseka was there being dealt with by the Tribunal.

23    I appreciate that the Tribunal’s failure to deal with the appellant’s fear based upon the friendship between his father and General Fonseka was not a ground clearly articulated by the appellant before the Federal Magistrate or on this appeal. To some extent, the point is raised by the appellant’s second ground, although couched more in terms of a failure to take into account evidence, than a failure to deal with a basis for the appellant’s claim. However, I have found error on the part of the Federal Magistrate. The Minister’s written submission at [35] responded to the second ground including by contending that all of the appellant’s claims were taken into account. Further, the Minister was given an opportunity to deal specifically with the contention in the course of the hearing today. In those circumstances and given my view that jurisdictional error is established, the interests of justice favour the grant of relief.

24    I should add that the error of the Federal Magistrate includes the approach taken by him to the appellant’s second ground. In relation to that ground the Federal Magistrate said:

The applicant argued that the country information supported the claims that the applicant’s father was a former associate of General Fonseka and that the applicant would be of adverse interest to the government. The material indicated that his father was known to the general. However, the key question was whether or not his father and/or he or his mother were actually actively involved in the UNP campaign for General Fonseka. The findings in this respect were clearly against the applicant and against the proposition he put forward with respect to his father.

It does not appear to me to have been sufficient to simply show that the applicant’s father was known to the general, as there would be literally thousands of people known to a high ranking military officer who has run for a presidential campaign. The level of connection would need to be greater and indeed, that was the central feature of the applicant’s case that was put forward. To the extent that any low level connection was present, in substance this was dealt with in paragraph 92.

25    It is apparent, based on my analysis above, that the Federal Magistrate was wrong to identify “the key question” as being limited to whether the appellant’s father had been involved in campaigning for General Fonseka. The Federal Magistrate recognised at [17] the appellant’s reliance on the personal relationship between his father and the General, but seems to dismiss that reliance on the basis of his own findings as to the nature of that relationship rather than any findings made by the Tribunal. It was for the Tribunal to determine whether there was a close relationship or whether the father was merely “known to” the General. The Federal Magistrate should have, but did not, identify the failure of the Tribunal to make such a finding in the context of its failure to deal with the appellant’s claim based upon the personal relationship between the father and the General. By doing that, the Federal Magistrate erred.

26    The Minister did not assert that in the face of a finding of jurisdictional error such as that which I have found established, there was an independent basis to sustain the Tribunal’s decision.

27    None of the other grounds of appeal are made out.

28    It follows that I should allow the appeal, set aside the orders made by the Federal Magistrate, quash the decision of the Tribunal and remit to the Tribunal the appellant’s application for a protection visa. The appellant was unrepresented and no costs order in his favour is therefore necessary.

Associate:

Dated:    29 November 2012